The Ombudsman's final decision:
Summary: Mr Y, who complains on behalf of Mr X, says the Council is wrongly seeking contributions towards the cost of a care package that does not meet Mr X’s needs. The Ombudsman has found evidence of fault that has caused Mr X an injustice. He recommended the Council apologises to Mr X, uses a ‘light touch’ approach in future financial assessments for him and tailors any Disability Related Expense forms to reflect expenses relevant to Mr X. The Council agreed.
- Mr Y is complaining on behalf of Mr X. He says the Council is inappropriately seeking contributions from Mr X towards the cost of his care and that the care package provided is inadequate and of poor quality.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- As part of my investigation I discussed the complaint with Mr Y and considered information he provided. I made enquiries of the Council and considered its response and information it provided. I explained my initial view on the complaint in a draft decision statement and I considered Mr Y’s comments in response.
What I found
The Care and Support (Charging and Assessment of Resources Regulations, 2014)
- This legislation sets out how councils should consider customers’ means when calculating their contribution towards their care costs.
The Department of Health’s Care and Support Statutory Guidance (CASS)
- This document provides guidance on how local authorities should charge and carry out financial assessments for customers. Section 8 deal specifically with how local authorities should carry out financial assessments.
- Annex C of the guidance deals specifically with how disability related expenses should be considered.
Local Authority Circular LAC (DH) (2018/19)
- This document advises councils on the local authority charging arrangements for social care charging for 2017 and 2019. Of particular relevance to this complaint are the following sections which set out the minimum income guarantee for Mr X.
- 7 (2) Where the adult concerned is a single person and-
(b) is aged 25 or older but less than pension credit age, the amount of £91.40;
- 7 (5) Where the adult concerned is a single person who is in receipt of , or the local authority considers would, if in receipt of income support, be in receipt of-
- Disability premium, the amount of the applicable premium is £40.35;
- Enhanced disability premium, the amount of the applicable premium is £19.70
Cambridgeshire County Council Fairer Contributions Policy
- This is the Council’s policy for how it will calculate the contributions a customer should make towards their care.
- Mr X lives alone but receives support from Mr Y who is his friend and informal carer. He has been diagnosed with Attention Deficit Hyperactivity Disorder, Tourette’s syndrome, Obsessive Compulsive Disorder (OCD), depression and anxiety. He has also been diagnosed with Asperger’s syndrome and Post Traumatic Stress Disorder (PTSD). Mr X pays for private counselling to help him understand and manage his Asperger’s and PTSD.
- The Council has been providing assistance to Mr X since 2008 when he moved into the area. The most recent care assessment identified him as having the following needs:
- to feel safe at home and when he is alone;
- to build his confidence when using the kitchen;
- to develop prompts, structure, and distractions to help manage his changeable mood;
- to support him accessing social and work related activities such as restoring caravans, which is a hobby of his, working in a bookshop and other day-to-day activities;
- maintain contact with his mother and step-father; and
- to support him accessing sessions provided by ‘Action for Asperger’s’.
- To meet his needs the Council has arranged a care package with a local agency. Staff at the agency have achieved the Care Certificate which is a nationally recognised qualification for health and social care workers. The Council says the aims of the care package are too support Mr X to:
- retain and maintain positive social and familial relationships;
- experience fewer instances of instability in his mood and behaviours;
- maintain his physical health;
- continue to feel able to attend to his personal care and basic needs independently;
- continue with activities from which he derives pleasure;
- build his independence skills so he can go out alone;
- feel confident accessing the community; and
- have more structure to his day.
- Prior to 2017 Mr X been asked to contribute towards the cost of his care from his income which includes Employment Support Allowance (ESA) and the Personal Independence Payment (PIP). Mr X complained about the decision to the Council and it did not pursue him for payment.
- In May 2017 the Council realised it had not carried out a financial assessment for Mr X since 2011 and so asked him to complete a financial assessment.
- Mr X found the assessment form difficult as none of the examples of disability related expenses (DRE) was relevant to him. Mr Y helped him with the assessment which concluded Mr X should contribute towards his care costs.
- In March 2018 the Council carried out another financial assessment for Mr X following an increase in his ESA. This found Mr X had a weekly income consisting of £248.75 comprising ESA and PIP payments. It also found he had DRE totalling £74.86 comprising costs for counselling sessions and associated transport costs, headphones, book shop rent and cleaning.
- After deducting the DRE and other relevant allowances, Mr X was left with an assessible income of £22.44. The Council said he should contribute this amount towards his care.
- Mr Y challenged the Council’s decision on Mr X’s behalf. He said Mr X’s income was spent entirely on costs related to his disabilities and for this reason he should not have to contribute to the cost of his care. The Council disagreed and it excluded the following expenses from its assessment of Mr X’s DRE:
- credit Card debt (total debit £700) - Mr Y explained that Mr X makes compulsive purchases owing to his conditions;
- caravan storage (£450 annually) - Mr Y explained that Mr X’s hobby of restoring caravans aided his wellbeing;
- Asperger’s equipment as recommended by Mr X’s counsellor (£50 per fortnight); and
- additional food and drink related to his OCD (£15 per week) - Mr X drinks milks and juice compulsively and orders takeaways as he is not confident using the kitchen.
The Council refused to include the credit card debit as a DRE and said that payment to clear the debt should be made from Mr X’s minimum income guarantee. It said the remaining expenses required evidence of expenditure for it to consider them further.
- Mr Y maintained the Council’s decision was wrong. He explained Mr X could not contribute towards his care costs as this would mean forgoing one of the activities which benefited him more than the support given as part of the care package from the Council. He says the care package from the Council does not meet Mr X’s needs. He also says that staff from the agency used are not suitably trained to provide care for Mr X and that sessions are often cancelled by the agency, yet Mr X is still charged. For these reasons he said Mr X would not be paying invoices sent by the Council for his assessed contribution.
- The Council did not alter its view and so Mr Y pursued a complaint through the Council’s complaints procedure. The grounds of complaint were:
- it was wrong for the Council to start charging Mr X for his care when it had not previously done so;
- yearly financial assessments were intrusive and unnecessary as Mr X’s situation will not alter;
- the DRE form was not tailored for Mr X’s needs and so he found it difficult to engage with;
- all of Mr X’s income was spent on his disabilities and so he should not have to contribute to his care costs;
- the agency providing Mr X’s care did not have suitably trained staff; and
- Mr X was being charged for sessions not provided by the care agency.
- The Council replied saying:
- it is required to carry out regular assessments of customers’ finances in case their circumstances have changed and to ensure the correct contributions are made;
- It would be difficult to include every type of DRE on the assessment form so it included only the most common types of expenses;
- it would increase Mr X’s allowance for DRE;
- the agency’s staff had completed training that allowed them to effectively meet Mr X’s needs;
- the cost of Mr X’s care package far exceeded the amount he is being asked to contribute. Therefore, even if sessions were missed by the agency, Mr X’s contribution would not alter; and
- the missed sessions were often unavoidable as they were caused by unexpected staff absence; and
The Council also said it would pursue payment of its invoices for Mr X’s care which it had placed on hold while it considered the complaint.
- Mr Y remains unhappy and approached us for assistance. During my investigation Mr X received a letter threatening him with recovery action for non-payment of the contributions the Council said he should make.
- As part of my investigation I made enquires of the Council. In its response the Council has accepted that Mr X’s expenses in respect of caravan storage and food and drink should have been included in his DRE allowance. It has now undertaken to include them and so Mr X is no longer required to contribute towards his care costs. It apologised for this and said it has cancelled the outstanding invoices.
- The Council also said that Mr X had been engaging with the care and support process actively in recent months and was now identifying his own personal goals.
Annual financial assessment
- Mr Y says the Council is at fault for carrying out a financial assessment for Mr X each year. This is because Mr X’s circumstances have not altered and so a full review is not necessary. The Department of Health’s Care and Support Statutory Guidance says a council must complete financial assessments to determine what a person can afford to pay towards the care they receive. For this reason, I do not find the Council at fault for carrying out a financial assessment for Mr X.
- However, I note that Mr X’s circumstances are not likely to alter. I am also aware he finds engaging with the financial assessment process difficult. The Department of Health’s Care and Support Statutory Guidance explains that in certain circumstances a council can carry out what it refers to as ‘light touch’ financial assessments. These can be used when a person has an income which means they would not be able to contribute towards their care costs. Mr X’s income is made up entirely of benefits and after deducting his DRE expenses he does not need to contribute towards the cost of his care. It seems unlikely this position will alter soon and so I think there are grounds for the Council to consider using such an approach in future.
The Council’s refusal to accept Mr X’s income is used entirely to fund expenses related to his disabilities
- Mr Y says the Council was wrong to dispute that Mr X’s income is used to entirely fund expenses related to his disabilities. The Council accepts it should have included expenses for Mr X’s consumptions of juice and milk and those related to his caravan as part of his DRE. Mr X did not provide the Council with any new information to enable it to revise its position and so I consider it could have reached this decision sooner. Its failure to do so placed Mr X under the unnecessary pressure of dealing with the matter and of receiving letters about recovery action. It has also necessitated Mr Y making complaints on his behalf. I consider this could have been avoided if the Council had thoroughly considered the matter earlier.
- I understand Mr X found the DRE form difficult to engage with as it did not include expenses relevant to his situation. The Council says the form includes the most common types of disability related expenses and I agree it could not include every type. However, I do not see why those involved in Mr X’s care and financial assessment could not modify the form to include expenses he has previously told the Council about and those that can be identified from his care plan and care assessment. While this might not capture every DRE applicable to Mr X, it would make the form easier for him and help him to identify other similar expenses
The care package provided by the Council for Mr X
- Mr Y says the care package does not meet Mr X’s needs and that he gets more benefit from therapeutic care he has arranged himself, like his counselling sessions. The purpose of the care package is to meet the needs identified in Mr X’s care assessment so I do not agree it does not meet his needs.
- Nevertheless, I recognise that Mr X does benefit from the counselling sessions he has arranged and other therapeutic activities. Now the Council has recognised in full Mr X’s DRE, he can continue to benefit from both types of support without worrying he will not be able to do so.
- Concerns have been raised some sessions included in the care package are not provided. This happens when Mr X has other medical appointments, cannot be provided when he requires them or are cancelled by the agency. It is recognised by all parties that the care package cannot provide the flexibility Mr X would like. Arranging his own care through direct payments might help achieve this as Mr X will be able to choose his own care providers. The Council has offered to help Mr X and Mr Y with this and to provide care for Mr X using both a care package and direct payments.
- I note Mr X was previously unwilling to engage with the care assessment process in terms of identifying personal goals. I understand he had a meeting recently where he was more engaged in doing so. Hopefully identifying his own personal goals will allow him and the Council to tailor his care package so that it is beneficial to achieving these.
- While Mr Y has suggested the Council has been unable to source suitably trained professionals to care for Mr X, it has confirmed the agency staff the hold the Care Certificate which is a nationally recognised qualification.
- Mr Y says it is unfair that Mr X was still asked to contribute towards the cost of his care even when sessions were not provided. However, the Council is no longer asking Mr X to contribute towards his care costs and has cancelled the invoices issued to him. I do not consider Mr X has been caused any financial injustice as a result of the alleged fault.
- I have found fault by the Council because it did not recognise all of Mr X’s DRE sooner. This has caused him distress including being chased for payment of invoices issued. It also put him and Mr Y to the time and trouble of complaining. In recognition of the injustice caused to them both, I recommended the Council apologises in writing. It agreed.
- I also recommended the Council uses a light touch financial assessment for Mr X in future and amends any DRE forms so they reflect the expenses he currently has and those identified in his care assessment. It agreed.
- Lastly I recommended the Council offers to meet with Mr X and Mr Y to discuss the advantages of using direct payments to help him arrange care with the flexibility he requires. It should also see if any changes can be made to his current care package so it can better meet the personal goals Mr X is identifying. It agreed.
- All of the above recommendations should be completed within one month of my decision.
- I have ended my investigation of this complaint because the Council has agreed to my recommendations thereby remedying the injustice caused to Mr X by the fault I identified.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman